The late Capt Saurabh Kalia’s case, the casualness shown thereon and the quandary, nay inertia, over invocation of the jurisdiction of the International Court of Justice (ICJ), paradoxically, emanated from a different matter, and that was a Public Interest Litigation filed by the late Lt Gen Jagjit Singh Aurora in 1999 before Gujarat High Court seeking a declaration that 54 Prisoners of War believed to be in Pakistani jails may not be treated as “presumed dead” but “on duty” for all purposes till the notional date of retirement and their kin accordingly be released all benefits of such declaration and that the government take the issue to international fora for justice.
Accepting his plea in 2011, Gujarat High Court directed the Government to grant all service and retirement benefits by treating such PoWs as alive, and approach the ICJ on their non-release. The father of Capt Saurabh Kalia also had sought similar relief from our Government, and having failed so, approached the Supreme Court. However, on May 2, 2012, the Government of India (UPA) appealed against the HC decision before SC and obtained a stay on approaching the ICJ.
The Government stand was clear on the subject, whether it is our PoW or the ghastly torture of Capt Kalia — the ICJ could not be approached since its jurisdiction is consent-based and both parties to the dispute need to permit the lis being adjudicated by the said court. There is some truth in such a claim and agree that the hands of Government are somewhat tied, but the question arises whether it was prudent for the Government to oppose such a claim in SC or file an appeal in Gen Aurora’s case? The answer is “No”.
Rather than opposing the plea in SC, the Government could have invoked the jurisdiction of the ICJ under the unilateral application clause without the consent of Pakistan within the meaning of Paragraph 5 of Article 38 of the Rules of the ICJ (Forum Prorogatum) under which the ICJ would have transferred the petition to Pakistan for its response.
There are only two instances where such an approach has finally succeeded but at least the war crime would have been into sharp global focus, even hypothetically resulting in a rejection at the ICJ ultimately. The saving grace though is the pleasant news that India’s current no-nonsense Minster of External Affairs has decided to take a relook.
Relief elusive
Which brings me back to a very pertinent question, whether issues related to the dignity and welfare of martyrs, their families, military veterans, military widows and even serving soldiers should shuttle between protests, distrust, disdain and from pillar to post to Court, or should the Government itself be sensitive enough and ensure that the disquiet is relieved through a temporal unguent.
The last few years have not only seen families of martyrs up in arms but also the Government, especially the Ministry of Defence, taking a stand contrary to genuine claims of the military community, including disabled and war disabled soldiers, by filing thousands of appeals right up till SC against, at times, just a few hundred rupees of benefits granted to them by courts and tribunals.
The Government also placed a plea before SC, and got a favourable verdict, that poor soldiers, veterans and widows aggrieved by decisions of the Armed Forces Tribunal (AFT) would not be able to challenge the same before high courts, thereby snatching away their fundamental rights which are otherwise guaranteed to every citizen.
The only way to question AFT verdicts now is to approach SC directly but the same is permitted if the case involves a “point of law of general public importance” and which approach anyway is unaffordable and inaccessible to most. Though the current government has tried to improve the interface with the military community, the perilous hold of the lower bureaucracy in the Central Secretariat remains the same.
I shall now fall back upon my disclaimer. There is not a solution I can recommend in Capt Kalia’s case, but unfortunately neither can the court. As citizens, we expect the Government not only to raise the issue internationally and also robustly with Pakistan, but also the highest of the political executive to personally reach out to Capt Kalia’s family and others affected by such horrors and to alleviate their hurt. Per Thomas Carlyle, “endurance is patience concentrated”, but then, let us not stretch it to the extent of causing a rupture in our national pride we so very cherish.
(Author is a practicing advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He is a member of the International Society for Military Law and the Law of War at Brussels. He is also the author of “Maimed by the System”, a collection of real-life accounts of military veterans and their families who fought to claim their rights)
